No Warrantless Searching of Our Emails, Chats, and Browser Data

(EFF) – Congress is poised to vote on extending or reforming NSA surveillance powers in the coming weeks, and one issue has risen to the forefront of the fight: backdoor searches. These are searches in which FBI, CIA, and NSA agents search through the communications of Americans collected by the NSA without a warrant. This practice violates the Fourth Amendment. But the government argues that since the NSA originally collected the communications under statutory surveillance powers, the government doesn’t need a warrant to search through them later. This is a “backdoor” around the Constitutional rights that protect our digital communications.

But we have a chance to shut and lock that backdoor, so that government agents don’t access the communications of Americans without proving probable cause to a judge.

The USA Liberty Act introduced this month is considered the most viable NSA reform package, and privacy champions on the Hill were able to insert some safeguards against warrantless search into the initial draft. FBI agents who know about a crime and are searching someone’s communications to obtain evidence and build up a case will have to go to a judge and get a warrant before accessing those communications. That’s a good step.

But it isn’t the full reform we need. That’s because the USA Liberty Act won’t extend the warrant protections to NSA or CIA agents, who we know routinely search this vast database of communications. If the FBI is merely poking around the database trying to look for criminal activity but isn’t investigating a specific crime, they won’t be required to get a warrant. And “foreign intelligence gathering” —a notoriously broad and vague term in the government’s parlance— will also be exempt from this warrant requirement.

Accessing American communications should require a warrant from a judge. The reform in the USA Liberty Act is an effort to move in that direction, but it leaves a policy that’s open to abuse. Under the current legislative draft, NSA agents can still read emails of Americans and pass “tips” to domestic law enforcement, all without judicial oversight.

We have shown many times over the last few years that calls can make a huge difference. And this is the moment: the Judiciary Committee in the House is considering revisions to the bill right now. This is the time to put pressure on the House if we want to see the backdoor search loophole shut.

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